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Here, ABcontractCagentfor Ccontract- does not overcome the consideration problem; must show that consideration passed between B & C4. Trust: A holding on trust certain contractual rights for C- earlier, courts created a legal fiction on these principles to get around privity problemGreenwood, however, says this is no longer a fiction.Two features: (1) intention to create a trust; (2) trusts are irrevocable.5. Joint Promisees: close relationship between A & C; both are signatories to the contract, though consideration only flows from one. This is good enough to cover both.6. Collateral Contract (as in Hallmark Poolv. Storey)- creates a separate contract between Storeys and manufacturer- unilateral contract (looks to Carlill)7. Does C provide some consideration?8. Provided for in a deed, to which C is a party.- no consideration necessary9. Possibility of assignment: equitable or statutory.- not really an exception; more like a parallel legal concept- allows you to do indirectly what privity will not allow you to do directly (ex. Gilbert Steel)AassignsCBC can nowsue B
The New Zealand Shipping Co.v. A.M. Satterthwaite- only one case in a whole string re: bills of lading- Midland Silicones; New Zealand Shipping, I.T.O.- struggled with in high courts in England, Australia, New Zealand, United States & Canada- Seller: builds drills in England; needs to ship to buyer- he is the ‘consignor’- also contracts with carrier to deliver goods to buyer- this contract is a ‘bill of lading’Role of Bill of Lading:1. Receipt showing carrier received goods from consignor2. Lays-out the terms of contract of carriage3. Acts as title to the goods- tricky part is when bill of lading is received by buyer (consignee) before the goods- this is what happened in New Zealand Shipping- Insurance Difficulty: who will insure the goods?- Bill of Lading will assign this risk to one party or the other- usually contains a significant exemption clause covering the carrier ~ designed to protect the carrier- Buyer becomes a third-party to this contract between consignor & carrier. Resolved by Bills of Lading Actin all jurisdictions.- sometimes the buyer receives damaged goods; can’t sue the carrier, so they look to the stevedore. Sue in negligence.- stevedore is looking for a defence; points to exemption clause in the contract of carriage.- not a party to that contract- stevedore argues that the exemption clause governs the whole of carriage, including his role.Divergent Policy Goals:1. Makes no sense to exclude stevedore. The whole arrangement is based on commercial reality; makes no commercial sense. This arrangement was meant to minimise transaction costs, but by excluding them the stevedore will need to take out liability insurance, thus increasing costs.2. Why should we protect a wrongdoer? Doesn’t tort have some deterrence function? Shouldn’t make any exceptions.pp.381-2: Court looks to dictaof Lord Reid in Midland Silicones:1. Show that parties intended to protect stevedore;2. Show that carrier is contracting as agent for stevedore;3. Carrier must have